How is President Obama reforming immigration policy through executive action?
On November 20, 2014, President Obama announced sweeping changes to the immigration system via executive action.
The most substantial change extends protection from deportation to about 4.3 million more unauthorized immigrants in the US. Immigrants will be eligible to apply for three years of relief from deportation, and work permits, if they
- arrived in the US before 2010, and arrived in the US under the age of 16; or
- arrived in the US before 2010, and have at least one child who is a US citizen or legal resident.
The Obama administration also announced changes that would expand legal immigration of skilled workers, which could result in 150,000 to 200,000 new workers moving to the US. And it announced an overhaul of immigration enforcement, including revamping the Secure Communities program (which enlisted local jails in turning over immigrants to federal agents) and the federal government's priorities for deportation.
How many immigrants are eligible for protection from deportation under Obama's plan?
President Obama is extending protections to about 4.3 million immigrants under his new plan — meaning that, including the existing DACA program, about five and a half million unauthorized immigrants will be eligible for relief.
Here are the two major categories of immigrants who are eligible for relief:
- DACA (Deferred Action for Childhood Arrivals): Immigrants who entered the US before January 1st, 2010, and who entered the US before they turned 16 (and who meet other requirements) are eligible for DACA. The program was instituted in 2012, to protect young unauthorized immigrants who would have been eligible for the DREAM Act. At that point, about 1.2 million immigrants were eligible (although only about 600,000 have signed up so far.) It was expanded as part of the president's 2014 executive actions, and now about 1.5 million immigrants are eligible.
- DAP (Deferred Action for Parents): Immigrants who entered the US before January 1st, 2010, and who have at least one child who's a US citizen or green-card holder, may be eligible for deferred action under a new program. (The details of requirements haven't been finalized yet.) An estimated 4 million immigrants could be eligible for this program.
In order to actually receive protection from deportation, immigrants will have to apply — and pay a fee that could be several hundred dollars — and have their applications approved. Applications for both the expanded DACA program and the new program for parents are expected to open in spring 2015.
Is President Obama legalizing millions of unauthorized immigrants?
What the Obama administration is doing is allowing certain unauthorized immigrants to apply for something called "deferred action." Deferred action offers protection from deportation for a certain amount of time — in this case, three years. The administration is also issuing work permits, which allow people to work in the US legally, to immigrants who receive deferred action.
But deferred action, even with a work permit, isn't the same as legal status. Immigrants who get deferred action are still unauthorized. They're not legal, and they're not getting a path to citizenship.
Legal status is a term that means specific things in immigration law. The executive branch is allowed to decide who should and shouldn't be deported, and even decide to protect immigrants in the second category from deportation temporarily, but only Congress can decide who should qualify for legal status.
Why does this matter? For one thing, legal status is much harder to take away, but deferred action can be taken away very easily. A future president could easily strip protection from deportation to all the immigrants covered by the Obama administration, which would allow them to be deported again. That wouldn't be the case if immigrants were getting legalized through the new program.
Has the president protected a group of unauthorized immigrants from deportation before?
Yes. The Deferred Action for Childhood Arrivals program, or DACA, got expanded under the new changes, but it's been in place since 2012.
The program applies to many of the "DREAMers": young unauthorized immigrants who would have qualified for legalization under the DREAM Act.
Under the current DACA program, young unauthorized immigrants who meet certain criteria apply for two years of protection from deportation (it's going to be extended to three years under the new set of orders), and can get work permits once they've been "DACAmented." An estimated 1.2 million immigrants were initially eligible for the program, and about half of them have actually applied. Read this Vox feature for more about how well DACA has worked so far.
The administration has also used another tool, called parole-in-place, to give relief from deportation to spouses of US servicemembers. That's been a much smaller and lower-profile program.
Since the Obama administration arrived in office, it's tried to protect many immigrants from deportation passively — by The administration's trying policies that were supposed to direct federal immigration agents to deport serious criminals, not family members of US citizens. But in general, the administration's been much more effective when it's allowed immigrants to apply for protection proactively, rather than when immigrants have to hope that immigration agents will choose not to deport them. So many of the immigrants who are now eligible to apply for deferred action were immigrants the administration's tried to protect before, in one way or another.
Is it legal for Obama to give relief to millions of immigrants?
The president doesn't have the authority to give anyone legal status in the US. But the current system gives the executive branch broad authority to decide what it wants to prioritize when it comes to immigration enforcement.
That's why deportations have increased so much over the last twenty years, despite no substantial changes to the law. But it also means Congress has given the Department of Homeland Security a few tools to keep unauthorized immigrants from getting deported.
One of those is deferred action, which is the basis for the new executive action — as well as the DACA program for young unauthorized immigrants. Deferred action has been around for decades to protect immigrants from deportation in particularly compelling cases.
Relief from deportation is usually granted on a case-by-case basis, but it's been granted to groups of people before — albeit to many fewer immigrants than Obama has.
Some critics of DACA argue that it wasn't legal. They say that by announcing a set of criteria and inviting all immigrants who met the criteria to apply, the Obama administration went beyond granting relief on a case-by-case basis — and therefore overstepped its authority.
Scholars who believe DACA was legal, though, believe that expanding the program to millions more immigrants would be legal as well. In other words, there doesn't appear to be a legal basis for thinking that what Obama did in 2012 is legal but what he did in 2014 was illegal. That's why even conservative legal scholars, like those at the Federalist Society, have agreed that President Obama isn't overstepping the bounds of the law.
Most critics of executive action think that any attempt to grant relief from deportation to immigrants, or roll back immigration enforcement, means the president is "refusing to enforce immigration law." But because of the broad discretion the executive branch gets in immigration policy, the critics are really making an argument about what US immigration policy should be — not about what the law requires.
Ironically, the most legally unprecedented policy change Obama's making — allowing entrepreneurs to come to the US via "parole" — is the least politically contentious. That's because most politicians in both parties support high-skilled immigration.
How is the GOP reacting to Obama's executive actions on immigration?
Republicans are extremely upset about the president's actions on immigration. But they don't appear to have settled on a response yet.
Here are some responses the GOP might take:
Legislation. The first thing Republicans are likely to do is pass a resolution disapproving of Obama's actions. But that doesn't actually change anything.
Republicans are also reportedly considering more permanent legislative responses. They might, for example, pass a bill defunding or restricting the agencies that handle immigration — which could include both the agencies administering any relief program, and the ones dealing with immigration enforcement.
There's also talk in some Republican circles about passing immigration bills in a Republican Congress in 2015 — to address, for example, border security or high-skilled immigration. But none of the bills being discussed would address the unauthorized population, so it doesn't appear that they'd have any effect on Obama's new deferred-action programs.
Using government funding as leverage. Congress needs to pass a temporary government funding bill by December 11, 2014. Republican leadership wants to pass a bill to fund the government through October 2015. But conservatives led by Ted Cruz only want to fund government through February or so, and then use any future funding as leverage to stop Obama's "amnesty."
As of early December, it appears that the GOP's strategy will be to fund most of the government through September 2015 — but fund the Department of Homeland Security only through March, so that they can renegotiate DHS funding in the spring.
It's worth noting that Republicans won't be able to directly "defund" the new deferred-action program, since it's fee-funded. But they can simply require, as a condition of the funding, that Obama stop the program.
Government shutdown. Incoming Senate Majority Leader Mitch McConnell promised after the election that Republicans wouldn't be shutting down the government or engaging in brinksmanship on the debt ceiling — for any issue. But by November 13, Speaker of the House John Boehner was already saying that "all options are on the table" to strike back at Obama over immigration — including a government shutdown.
A lawsuit. Republican National Committee chair Reince Preibus promised a group of Republican donors in late October that if Obama takes executive action on immigration, "We will do everything we can to make sure it doesn't happen: Defunding, going to court, injunction. You name it. [...] We can't allow it to happen and we won't let it happen." However, many legal scholars agree that a legal challenge to the new program isn't likely so succeed. So it's likely that the only way to keep Priebus' promise is to engage in the kind of legislative brinkmanship — like threats to defund the government — that Republican leaders in Congress are trying to avoid.
Impeachment. Rep. Steve King (R-IA), a longtime supporter of maximizing deportations of unauthorized immigrants, says that he'll call for impeachment hearings in the House if Obama makes a big move.
When the administration initially announced its Deferred Action for Childhood Arrivals (DACA) program in 2012, there wasn't much Republican opposition. As a bigger immigration-relief program has become a possibility, though, Republicans have turned against DACA as a way to signal their opposition to Obama taking another executive action. In August, the House voted not only to end the DACA program for new applicants, but to strip protection from immigrants who currently have DACA status. And in September, the Senate narrowly defeated an amendment to a continuing resolution to fund the government that would have ended the DACA program (but would have only stripped work permits, not deportation protection, from current DACA recipients).
Do voters support Obama acting on his own on immigration?
Generally, the American public wants the government to do something about immigration— and they're not terribly picky about what. But polls from before President Obama announced his executive actions showed that Americans appear to be pretty divided on whether they wanted him to do anything.
One poll, taken just before President Obama's announcement, showed that only 32 percent of Americans approved of a prospective executive action from Obama, while 42 percent disapproved. Another November poll showed that only 42 percent of Americans supported Obama acting on his own to "deal with illegal immigration," while 46 percent thought he should "wait until January for the new Republican Congress to pass legislation on this issue." The problem, of course, is the implication that Congress would definitely have passed a bill in January if the president hadn't acted — which isn't certain, by any means.
None of these polls, however, specified what the president actually did. The one poll that has done that was conducted by Democratic pollster Hart Research Associates — it claimed that after hearing a detailed description of the president's action, 67 percent of Americans supported Obama's executive actions overall. However, a neutral pollster might use a different description, and come up with a different result.
What smaller changes is Obama making to immigration enforcement?
Because executive authority over immigration enforcement is so broad, there are plenty of things the administration can do to reform it. Here's what it's done:
Reforming Secure Communities: The White House is making major changes to its signature immigration enforcement program, called "Secure Communities." Secure Communities sends the fingerprints of anyone booked into a local jail to immigration officials; federal agents can then ask the local cops to hold the inmate, so they can pick him up. Federal officials have come under serious fire for using Secure Communities as a dragnet to deport plenty of unauthorized immigrants who aren't serious criminals, and dozens of cities and states have said that they're only going to honor federal requests to pick up an immigrant in certain cases.
Now, the federal government is following that lead: it's only going to ask state and local officials to hand over an immigrant after she's been convicted of a serious crime (or a third misdemeanor). And even then, instead of asking the state or local jail to hold the immigrant after she would otherwise be released (so ICE agents can pick her up), federal agents will just ask local law enforcement to let them know when the immigrant's due to be released so they can take custody at that point.
Reforming deportation priorities: The Obama administration's boasted for the last several years that most of the people they're deporting are "priorities" for deportation. But those priorities were attacked for being way too broad. Now, the administration is overhauling its priorities. The new priorities target immigrants who've been convicted of serious crimes, and people who entered the US, or were ordered deported, in 2014.
Adhering to these new priorities is going to depend on ICE field agents — who've been extremely resistant to any attempt to limit deportations. But to impose some accountability, an agent's now going to have to prove to his office's director that someone should be deported even though she's not a priority.
What is the Obama administration doing to expand legal immigration?
The executive branch has a little less leeway with legal immigration than it does with enforcing immigration law — so many of the changes the Obama administration wants to make will come through the regulatory process, and won't be spelled out for some time. But here's what we know so far:
Spouses of green-card holders can now apply for legal status in the US:Currently, green-card holders can apply for visas for their spouses, but if the spouse is already in the US as an unauthorized immigrant, that gets extremely hard. A few years ago, the Obama administration started letting spouses of US citizens stay in the US while applying for a waiver that would let them get legal status — instead of having to wait for months outside the country without knowing if they could return. Now, that's being expanded to green-card holders as well. The White House Council of Economic Advisors estimates this will create somewhere between 104,000 and 167,000 new work permits.
More work permits for recent graduates: The administration is looking to expand a program that lets foreign students in Science, Technology, Engineering, and Math (STEM) fields work in the United States for up to 2 1/2 years or so after they graduate.
The program's called Optional Practical Training, and it currently allows students to work in the US for a year after graduation — but if they're STEM professionals, they can apply to stay for an additional 17 months.
The OPT program was expanded in 2012, to cover more fields of study. It's estimated that anywhere from 100,000 to 200,000 immigrants are currently in the US under the OPT program. Senior administration officials are planning further revisions to the system that should lead to 10,000-36,000 more OPT visas.
Making it easier for foreign entrepreneurs to get visas. The administration is planning a more expansive use of its parole authority to make it easier for foreign entrepreneurs who invest in job-creating businesses to move to the United States. CEA envisions 33,000-53,000 new migrants via this channel.
What else should I be reading on this subject?
- If you think you or someone you know might be eligible for relief, please check www.adminrelief.org, which has resources to educate yourself and get legal help.
- To know how the new relief programs are going to work — and if they're going to be effective — it's useful to look at how the DACA program has worked since it was unveiled in 2012. Check out this Vox feature from August on the topic.
- If you're still not sure about how you feel about Obama's executive actions, check out Vox's Ezra Klein with the best arguments for and against executive action on immigration.
You didn't answer my question!
This is very much a work in progress. It will continue to be updated as events unfold, new research gets published, and fresh questions emerge.
So if you have additional questions or comments or quibbles or complaints, send a note to Dara Lind: firstname.lastname@example.org.
How have these cards changed?
This is a running list of substantive updates, corrections, and additions to this card stack. These cards were last updated November 18, 2014.
- On September 30, 2014, the card "What could the Obama administration do to expand legal immigration?" was edited to incorporate objections to the legality of the "visa recapture" proposal.
- On October 8, 2014, the card "How many immigrants would benefit from Obama's upcoming executive action?" was edited to clarify the theoretical possibility that Obama could protect larger groups of immigrants.
- On October 9, 2014, the card "How many immigrants would benefit from Obama's upcoming executive action?" was edited to correct the age at which US citizen children can apply for their parents to get legal status.
- On October 10, 2014, the card "What could the Obama administration do to expand legal immigration?" was edited to clarify a proposal for recapturing H-1B visas, and to add the possibility of action to allow spouses of H-1B visa holders to work legally in the US.
- On October 30, 2014, the cards "How is President Obama planning to reform immigration policy through executive action?" and "When is Obama going to announce his executive actions on immigration?" were updated to reflect rumors about the final recommendations being submitted to President Obama by the Department of Justice and the Department of Homeland Security.
- On October 30, 2014, the card "How is the GOP reacting to the possibility of Obama acting on immigration on his own?" was updated to include comments from House Majority Leader Kevin McCarthy and Republican National Committee chair Reince Priebus.
- On October 30, 2014, the card "How many immigrants could benefit from Obama's upcoming executive action?" was updated to include the most recent speculation.
- On November 5, 2014, the cards "How is President Obama planning to reform immigration policy through executive action?," "When is Obama going to announce his executive actions on immigration?", and "How is the GOP reacting to the possibility of Obama acting on immigration on his own?" were updated to remain current after the 2014 midterm elections.
- On November 10, 2014, the cards "How is the GOP reacting to the possibility of Obama acting on immigration on his own?" and "When is Obama going to announce his executive actions on immigration?" were updated to reflect the influence of executive action on the Congressional lame-duck session.
- On November 18, 2014, the cards "How is President Obama planning to reform immigration policy through executive action?" and "How many immigrants could benefit from Obama's upcoming executive action?" were updated to include the most recent speculation.
- On November 20, 2014, several cards were updated to reflect the most recent speculation in advance of the president's speech.
- On November 23, 2014, every card in this cardstack was rewritten to reflect the details of Obama's plan, and the card "Is the president legalizing millions of unauthorized immigrants?" was added.
- On December 2nd, 2014, the card "How is the GOP reacting to Obama's executive actions on immigration?" was updated to reflect current speculation about Congressional Republicans' strategy.